Oregon Attorney General Hardy Myers filed additional papers on behalf of the University last week in support of its motion to quash a subpoena from the Recording Industry Association of America. The subpoena demands the University identify 17 network users who may have shared copyrighted music.
The University’s response accuses the RIAA and its Internet investigation firm, MediaSentry, Inc., of “spying” on students and collecting personal information from computers. The RIAA has refused to allow the University to discover what additional information MediaSentry may have collected.
In its motion to quash, the University said in order to provide the information the RIAA wants it would need to conduct an investigation on behalf of the RIAA instead of simply providing existing information.
Cara Duckworth, a spokeswoman for the RIAA, said in an e-mail that the investigations took place on public networks and the information gathered is available to any user of that network.
“The suggestion that the collection of such information is somehow an invasion of privacy is indeed misinformed, and has been rejected by every United States court to have considered it,” she said.
The papers also point out that MediaSentry is investigating without a license in Oregon. California intellectual property rights lawyer Antonio Sarabia has studied MediaSentry and other Internet investigators and said MediaSentry, which is based in Maryland, has no license to investigate in any state.
Deputy Attorney General Pete Shepherd said the Attorney General does not have the authority to investigate or take action against MediaSentry for being unlicensed. Investigators are licensed through the Department of Public Safety Standards and Training, the same department that trains public safety officers.
The most recent filings suggest that the RIAA’s investigation tactics not only violate privacy rights, but that the testimony of Gary Millin, an executive in MediaSentry, indicates that the data mining techniques used to “investigate computer users really only prove that computer files associated with particular IP address contain copyrighted songs and also contain the software used to exchange data files.” Meaning MediaSentry may not be able prove that users actually shared the copyrighted data or how the songs were obtained, whether legally or illegally.
“It follows the Plaintiffs have shown only a potential for illegal file sharing; they have not shown that any infringing activity took place,” the argument says.
Duckworth responded that the deposition of Millin was “years ago in a totally different case” and “not surprisingly, what MediaSentry may have done years ago in a different jurisdiction for a different client is not indicative of what occurred in this case.”
Sarabia believes MediaSentry may collect information that violates privacy rights. He said privacy violations are inherent in investigations conducted by unlicensed companies like MediaSentry.
“This is exactly the problem with unlicensed investigators,” Sarabia said. “They haven’t been taught the boundaries.”
The supporting papers suggest MediaSentry could be collecting information such as e-mail, credit card information, user names and passwords, Internet purchase information, Internet search history and file sharing. “Without reciprocal discovery there is no process to assess precisely how invasive Plaintiffs investigation was with regard to the John Does named in this suit.”
Duckworth said, “These are not allegations, but rather pure speculation by the Office of the Attorney General that the record companies may have ‘mined’ credit cards, passwords, and other such information. That speculation is completely misinformed and baseless.”
One of the RIAA’s arguments against the University’s motion to quash points out that in 2004, Portland State University identified two network users who had been assigned to a room together in a residence hall. PSU provided names, addresses, phone numbers and e-mail addresses for both the students assigned to that room.
The University addresses this in its supporting papers by saying that the PSU case asked only to identify one person, instead of 17 or more. It also points out that more is known about the RIAA’s tactics in pursuing alleged infringers now than was known when PSU was subpoenaed in 2003. The University continues to hold that in order to comply with the subpoena it would have to conduct an investigation of its own, and do more than simply providing an existing document.
In its opposition to the University’s motion to quash, the lawyers for the RIAA said the copyrighted music was distributed using Gnutella, a peer-to-peer file sharing network. The RIAA asserts the network users distributed more than 9,000 audio files. Some of the artists named include Madonna, Dave Matthews Band, U2 and Rod Stewart.
While the RIAA’s lawyers maintain that the subpoena seeks “directory information” which can be given out without a student’s permission under the Federal Educational Rights and Privacy Act, the University argues that the information sought is “personally identifiable information” which is a FERPA violation.
“As Congress has enacted special legislation to protect students’ privacy rights in their educational records and charged the University with protection of those rights, it is imperative that the University examine the burdens imposed by subpoenas for educational records closely and to challenge them where appropriate,” the papers say.
The papers point out that most of the defendants in the RIAA’s copyright infringement cases settle quickly so their investigative tactics are “never challenged by an adverse party and their investigative methods remain free from scrutiny.”
Duckworth said the papers suggest that the RIAA’s methods of evidence collection through MediaSentry have never been tested in court. “This is obviously and publicly known not to be true,” she said.
The University asked the court to allow it to take depositions from investigators in this case to determine how much information was collected and how it was collected. “If Plaintiffs have nothing to hide, they should be able to agree to these reasonable requests,” the reply says. “Since Plaintiffs have declined to share any information about what they know and how they know it, the University seeks the assistance of the Court to obtain it.”
The University’s motivation
Shepherd said the University is not standing up to the RIAA on behalf of lawbreakers, even though the RIAA has suggested the University is doing just that.
“The dispute about the subpoena doesn’t put the University in the state of defending students who have unlawfully obtained these files,” Shepherd said. “There is no state interest in defending people who have violated federal law.”
Shepherd said the University is fighting the subpoena to find out whether the recording industry can force the University to conduct an investigation.
Duckworth said, “To put it simply, the effect of the OAG’s efforts is to protect the clear and rampant infringement that appears to be occurring on the University network. Indeed, nothing in the brief suggests that they would agree to respond to any subpoena – no matter how it was drafted or what evidence was submitted to support the allegations of infringement.”
Sarabia said he is very surprised that the RIAA would use an unlicensed investigator when it has so many resources.
“It doesn’t make sense to me,” Sarabia said. “I am shocked, appalled, disappointed.”
Sarabia said the tactics used by the RIAA are influencing how people view copyright protection.
“I think that in some ways dirties intellectual property protection,” he said. “In the long run it’s going to hurt the record industry and the RIAA.”
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